Citation Nr: 0725044
Decision Date: 08/13/07 Archive Date: 08/20/07
DOCKET NO. 05-07 605A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for diabetes mellitus, to
include being due to exposure to Agent Orange.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran served on active duty in the US Marine Corps from
April 1966 to April 1968. He served in the Republic of
Vietnam during the Vietnam War Era.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a May 2004 rating decision of the Detroit,
Michigan, Department of Veterans Affairs (VA), Regional
Office (RO).
FINDINGS OF FACT
1. The VA has fulfilled its notice and duty to assist to the
appellant by obtaining and fully developing all relevant
evidence necessary for the equitable disposition of the issue
addressed in this decision.
2. The veteran served in the Republic of Vietnam where he
may have been exposed to Agent Orange.
3. The veteran has been diagnosed as suffering from diabetes
mellitus.
4. The veteran's private personal physician along with a VA
doctor has not etiologically linked the veteran's diabetes
mellitus with his military service or to exposure to Agent
Orange.
CONCLUSION OF LAW
Diabetes mellitus, claimed as secondary to Agent Orange
exposure, was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R. §
3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F. 3d 1328 (Fed. Cir. 2006).
VA satisfied its duty to notify by means of an April 2004
letter from the RO to the appellant that was sent prior to
the initial agency of original jurisdiction (AOJ) decision.
The letter informed the appellant of what evidence was
required to substantiate the claim for service connection,
and of his, and VA's, respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the AOJ.
VA has informed the appellant of which evidence he was to
provide to VA and which evidence VA would attempt to obtain
on his behalf. In this regard, the VA sent the appellant
notice of the VCAA, which spelled out the requirements of the
VCAA and what the VA would do to assist the appellant. The
VA informed the appellant that it would request records and
other evidence, but that it was the appellant's
responsibility to ensure that the VA received the records.
The appellant was told that he should inform the VA of any
additional records or evidence necessary for his service
connection claims.
The Board fulfilled its duty to assist. In this instance,
the VA obtained the veteran's available medical treatment
records, including requesting any treatment records from the
facilities the veteran had been treated, and those other
records that the VA was made aware thereof. As such, the VA
obtained those records and they have been included in the
claims folder, available for review. Given the foregoing,
the Board finds that the RO has substantially complied with
the duty to procure the necessary medical and personnel
records.
Additionally, VA has a duty to obtain a medical examination
or opinion when such examination or opinion is necessary to
make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West
2002 & Supp. 2006). The record reflects that, as a result of
the veteran's claim for service connection, an examination
for diabetes mellitus was conducted and those results have
been included in the claims folder for review.
Moreover, the appellant was given the opportunity to present
evidence and testimony before an RO hearing officer and the
Board. The appellant was given notice that the VA would help
him obtain evidence but that it was up to the appellant to
inform the VA of that evidence. During the course of this
appeal, the appellant and his accredited representative have
proffered documents and statements in support of the
appellant's claim. It seems clear that the VA has given the
appellant every opportunity to express his opinions with
respect to the issue now before the Board and the VA has
obtained all known documents that would substantiate the
appellant's assertions.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
Here the veteran was provided with notice of what type of
information and evidence was needed to substantiate his claim
for service connection, but he was not provided with notice
of the type of evidence necessary to establish an effective
date for the disability on appeal. He was also not provided
with any information concerning the criteria used to evaluate
diabetes mellitus. Despite the inadequate notice provided to
the veteran on these elements, the Board finds no prejudice
to the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby). In that regard, as the Board concludes below that
as the evidence is against the appellant's claim, any
questions as to the effective date or the rating criteria to
be assigned are rendered moot.
In this case, because each of the four content requirements
of a VCAA notice has been fully satisfied, any error in not
providing a single notice to the appellant covering all
content requirements is harmless error. Here, the appellant
is not prejudiced by the Board's consideration of his claim
as VA has already met all notice and duty to assist
obligations to the appellant under the VCAA. In essence, the
appellant in this case has been notified as to the laws and
regulations governing service connection claims. He has been
advised of the evidence considered in connection with his
appeal and what information VA and the appellant would
provide. He has been told what the VA would do to assist him
with his claim and the VA has obtained all documents it has
notice thereof that would assist in the adjudication of the
appellant's claim. Thus, the Board finds that there has been
no prejudice to the appellant that would warrant further
notification or development. As such, the appellant's
procedural rights have not been abridged, and the Board will
proceed with appellate review. Bernard, 4 Vet. App. at 393.
Under 38 U.S.C.A. §38 U.S.C.A. §§ 1110, 1131 (West 2002) and
38 C.F.R. § 3.303(b) (2006), service connection may be
awarded for a "chronic" condition when: (1) a chronic
disease manifests itself and is identified as such in service
(or within the presumption period under 38 C.F.R. § 3.307)
and the veteran presently has the same condition; or (2) a
disease manifests itself during service (or during the
presumptive period), but is not identified until later, and
there is a showing of continuity of related symptomatology
after discharge, and medical evidence relates that
symptomatology to the veteran's present condition. Savage v
Gober, 10 Vet. App. 488, 495-98 (1997).
To grant service connection, it is required that the evidence
shows the existence of a current disability, an in-service
disease or injury, and a link between the disability and the
in-service disease or injury. Watson v. Brown, 4 Vet. App.
309, 314 (1993). This principle has been repeatedly
reaffirmed by the United States Court of Appeals for the
Federal Circuit, which has stated that ". . . a veteran
seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability." Boyer v. West, 210
F.3d 1351, 1353 (Fed. Cir. 2000).
In addition, disability which is proximately due to or the
result of a service-connected disease or injury shall be
service-connected. 38 C.F.R. § 3.310 (2006). The Court has
held that when aggravation of a veteran's nonservice-
connected disability is proximately due to or the result of a
service-connected disease or injury, it too shall be service-
connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995).
The Court has further held that ". . . where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence is required."
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (The Court
held that a witness must be competent in order for his
statements or testimony to be probative as to the facts under
consideration). The Court has also held that "Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability. In the absence of proof of a present disability
there can be no valid claim." Brammer v. Brown, 3 Vet. App.
223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App.
141, 143-44 (1992).
Moreover, service connection connotes many factors, but
basically, it means that the facts, as shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service. A
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
in service. See Pond v. West, 12 Vet. App. 341 (1999);
Watson v. Brown, 4 Vet. App. 309, 314 (1993).
Additionally, a veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e)
(2006), shall be presumed to have been exposed during such
service to a herbicide agent, unless there is affirmative
evidence otherwise. 38 C.F.R. § 3.307(a) (2006). If a
veteran was exposed to a herbicide agent during active
military service, the diseases noted at 38 C.F.R. § 3.309(e)
(2006) will be service connected if the requirements of 38
C.F.R. § 3.307(a) (2006) are met, even there is no record of
such disease during service. However, if the rebutable
presumptions of 38 C.F.R. § 3.307(d) (2006) are also not
satisfied, then the veteran's claim shall fail. VA has
determined that a presumption of service connection based on
exposure to herbicides used in the Republic of Vietnam during
the Vietnam era is not warranted for any condition for which
it has not been specifically determined that a presumption of
service connection is warranted. See Notice, 59 Fed. Reg.
341 (1994).
Thus, service connection may be presumed for residuals of
Agent Orange exposure by showing two elements. First, a
veteran must show that he served in the Republic of Vietnam
during the Vietnam War era. See 38 U.S.C.A. § 1116 (West
2002); 38 C.F.R. § 3.307(a)(6) (2006). Second, the veteran
must be diagnosed with one of the specific diseases listed in
38 C.F.R. § 3.309(e) (2006). See Brock v. Brown, 10 Vet.
App. 155, 162 (1997). If a disorder is not listed in 38
C.F.R. § 3.309(e) (2006), the presumption of service
connection related to Agent Orange is not available. See
McCartt v. West, 12 Vet. App. 164 (1999).
Notwithstanding the foregoing presumption provisions, which
arose out of the Veteran's Dioxin and Radiation Exposure
Compensation Standards Act, Public Law No. 98-542, § 5, 98
Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,
Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United
States Court of Appeals for the Federal Circuit has
determined that a claimant is not precluded from establishing
service connection for disability due to Agent Orange
exposure with proof of direct causation. Combee v. Brown, 34
F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App.
40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239
(Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See
Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, the
presumption is not the sole method for showing causation, and
thereby establishing service connection.
The service records indicate that the veteran was in the US
Marine Corps and he served in the Republic of Vietnam for
approximately one year. In December 2003, the veteran
submitted a claim for benefits. He asked that service
connection be granted for diabetes mellitus implying that the
disability was related to his exposure to Agent Orange while
serving in Vietnam.
To support his claim, the veteran proffered a written
statement from his private physician. It is noted that the
physician had been treating the veteran since 1991 for a
number of conditions including diabetes mellitus. The doctor
wrote a statement in December 2003 and this statement stated
the following:
. . . Also now he has developed
diabetes secondary to the chronic
pancreatitis. He is on insulin and every
time he eats he gets severe pain.
The veteran's private medical records were obtained and have
been included in the claims folder. These records do in fact
show treatment for diabetes mellitus, along with other
conditions. They do not contain any opinions that would
relate the veteran's diabetes mellitus with his military
service or to exposure to chemical dioxins.
Prior to the RO issuing a decision on the merits of the
veteran's claim, he underwent a VA Diabetes Mellitus
Examination in April 2004. After reviewing the veteran's
available records and examining the veteran, the doctor
concluded that the veteran's diabetes mellitus was most
likely due to his nonservice-connected chronic recurrent
pancreatitis.
Notwithstanding the lack of supporting medical evidence, the
veteran has continued to assert that since his diabetes
mellitus is an Agent Orange presumptive disease and because
he served in Vietnam where he may have been exposed to Agent
Orange, service connection should be granted based upon 38
C.F.R. §§ 3.307 and 3.309 (2006).
Unfortunately, the veteran's assertions are the only positive
evidence in support of his claim. That is, the claims folder
is negative for any medical evidence, either from a private
physician or a government physician, which would establish an
etiological link between the claimed disability with his
military service. Instead, the available medical experts
have attributed the veteran's diabetes mellitus to an
intercurrent cause - that of pancreatitis. Pancreatitis has
not been shown to be related to the veteran's military
service or any incident therein. Pancreatitis has not been
found to be etiologically linked to exposure to Agent Orange.
In Caldwell v. Derwinski, 1 Vet. App. 466 (1991), the VA
Secretary defined the standard for "affirmative evidence to
the contrary" as follows:
The expression 'affirmative evidence to
the contrary' will not be taken to
require a conclusive showing, but such
showing as would, in sound medical
reasoning and in the consideration of all
evidence of record, support a conclusion
that the disease was not incurred in
service.
Citing then 38 C.F.R. § 3.307(d) (1990).
In this instance, two different doctors have concluded that
the veteran's diabetes mellitus was not due to his exposure
to Agent Orange or to his honorable service in the Marine
Corps, but was instead due to his nonservice-connected
pancreatitis. The Board finds that such opinions are
reasonable and fulfill the requirements of a finding of
'affirmative evidence to the contrary', and as such, support
a conclusion that the veteran's diabetes mellitus was not
incurred in or caused by or the result of the veteran's
military service. See Goodsell v. Brown, 5 Vet. App. 36
(1993).
Hence, the Board is left with the contentions made by the
veteran. These statements were undoubtedly made in good
faith; however, the veteran is not a doctor nor has he
undergone medical training. A lay person is not competent to
make a medical diagnosis or to relate a medical disorder to a
specific cause. However, that same lay person is competent
to provide evidence on the occurrence of observable symptoms
during and following service. If the claimed disability is
manifested by observable symptoms, lay evidence of
symptomatology may be adequate to show the nexus between the
current disability and the in-service disease or injury.
Nevertheless, medical evidence is required to show a
relationship between the reported symptomatology and the
current disability, unless the relationship is one to which a
lay person's observations are competent. See Savage v.
Gober, 10 Vet. App. 488 (1997).
In this instance, the veteran is competent to say that that
he may experience some of the symptoms produced by diabetes
mellitus. However, he is not competent to say that he has an
actual disability that is related to his service or to a
condition he suffered therefrom while he was in service or
that it is related to his exposure to chemical dioxins. In
other words, there is no indication that he possesses the
requisite medical knowledge or education to render a
probative opinion involving medical diagnosis or medical
causation. See Edenfield v. Brown, 8 Vet. App. 384, 388
(1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995);
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
In determining whether service connection is warranted, the
VA must determine whether the evidence supports the claim or
is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case service connection must be
denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2006); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990). Based on the above, the
Board finds that the medical evidence does not support the
veteran's assertions, and as such, service connection for
diabetes mellitus, either on a direct basis or on a
presumptive basis, is not warranted. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2006). The Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as there was no approximate balance of
positive and negative evidence of record, reasonable doubt
could not be resolved in the veteran's favor.
ORDER
Entitlement to service connection for diabetes mellitus, to
include being due to exposure to Agent Orange, is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs